Defendant hit his son with a baseball bat and was convicted of both child abuse and assault. On appeal, defendant argued that being convicted for two crimes based on one single act violated the 5th amendment double jeopardy clause (“nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb”). The appeals Court affirmed the two convictions because each offense contained an element not contained in the other, and thus, one charge was not a lesser included offense of the other. As the Court stated:
“The elements of assault in the second degree are (1) knowingly (2) causing physical injury to another person (3) by means of a deadly weapon or dangerous instrument. Section 565.060.1(2). The elements of child abuse are (1) knowingly (2) inflicting cruel and inhuman punishment (3) upon a child less than seventeen years old. Section 568.060.1(1). Second degree assault requires proof of physical injury to another person by means of a deadly weapon or dangerous instrument; child abuse does not. Child abuse requires proof of cruel and inhuman punishment upon a child less than seventeen years old; second degree assault does not. Because each crime requires proof of elements not required by the other, neither second degree assault nor child abuse is a lesser included offense.” State of Missouri v. Horton, No. 93475 (Mo. App. E.D., September 21, 2010).